53 S.E. 874 | N.C. | 1906
The learned counsel for the defendant in his argument before us relied chiefly upon the position that the street car was not personal property, and therefore that the alleged offense was not within the language or the meaning of section 3676 of the Revisal. He therefore contended that the judgment should be arrested. It does not appear from the indictment where the car was when it was injured by the defendant, but the evidence shows that it was then being operated on the track of the Fries Power Company in the city of Winston. The defendant's prayer for instructions is, perhaps, sufficient to raise this question, apart from the motion in arrest of judgment, though it does not distinctly point out this as a defect in the evidence and seems to have been intended to apply only to the question of variance. We will assume that the point is sufficiently presented, as it was clearly intended to be.
The method of changing property, personal in its nature, into realty is well settled in the law. Such property does not become realty by mere use in connection with the land, for if that were true, implements of husbandry, though used only for agricultural purposes, would thereby become a part of the land. Whether or not a chattel has become a part of the realty must to a great extent depend upon the facts of the particular case. The mere intention to make it a part of the freehold, though it may enter largely into the determination of the question (835) of permanency (Foote v. Gooch,
"1. Actual annexation to the realty or something appurtenant thereto.
"2. Application to the use or purpose to which that part of the realty with which it is connected is appropriated.
"3. The intention of the party making the annexation to make a permanent accession to the freehold.
"Tested by the foregoing criterion, it is manifest that the (837) rolling-stock of a railroad must be regarded as chattels which have not lost their distinctive character as personality by being affixed to and incorporated with the realty. It is true that engines and cars are adapted to move on the track of the railroad, and are necessary to transact the business for which the railroad was designed. But unattached machinery in a factory, the implements of husbandry on a farm, and furniture in a hotel, are similarly adapted for use in the factory, on the farm, or in the hotel, and are equally essential to the profitable prosecution of the business in which they are employed. When regard is had to the fundamental and necessary condition under which the law permits chattels to become a part of the realty, engines and cars and the rolling-stock of a railroad utterly fail to answer the requirement of the law." It does not appear in this case that the power company owned the land on which its rails were laid and over which its cars ran. Indeed, it must be that it did not, and this is the fair inference. The only right it had, in respect to the land, was a license to use the streets of the city for the operation of its line of railway. This being so, it had no land of its own to which it could annex its personal property and thereby convert it into realty. Having only a right to use the land for a definite purpose and subject to its joint occupation and use by the city and its citizens, so far as they did not interfere with or obstruct the use by the company, we cannot suppose that either of the parties intended that the nature of the property — that is, the cars — should be changed from personalty into that of realty. There is no valid reason for holding that such a change was contemplated or that it was wrought by a mere use of the streets in the manner already described. The cars were in no way actually and physically attached to the realty, nor were they constructively so annexed, the latter method implying that there exists both adaptation to the enjoyment of the land and localization (838) in use as obvious elements of distinction from mere chattels personal, which are movable and intended to be so. While there is here an adaptation to use, there is no annexation, no immobility from weight, and no localization in use. Were the same contrivance adopted by a *636
tenant for the purpose of carrying on his trade upon leased lands, his right to remove both cars and rails would seem to be beyond question.Hoyle v. R. R., supra; Moore v. Valentine,
The trial proceeded a little irregularly, it seems, in the lower court, as the grand jury returned "Not a true bill" as to one of the defendants, who, was, nevertheless, put on trial. We do not perceive, though, how there has been any misjoinder, nor why the original (840) defendants could not have jointly committed the offense, one doing the act and the other, as principal, aiding and abetting him, or participating with him. S. v. Stroud,
There was no error in the trial, and it will be so certified.
No error.
Cited: S. v. Frisbee,
(841)